Chad Flanders


In two cases, one recent and one now nearly a decade old, Judge David Mannheimer has raised important questions about Alaska’s jury instruction on “possession.” In particular, Judge Mannheimer has expressed a worry that Alaska’s definition of “constructive possession” invites juries to find possession where the defendant is only near an object and has knowledge of its presence. As Judge Mannheimer correctly points out, such a definition is too expansive. But how can we avoid this problem?

My short article takes Judge Mannheimer’s opinions in Alex v. State and Dirks v. State as the starting point for an investigation of Alaska’s possession doctrine. After summarizing the two opinions in Part II, Part III attempts to clarify the seemingly straightforward idea of “actual possession,” and finds that many courts wrongly treat many cases of actual possession as cases of constructive possession. Part IV tries to provide a solution to the problem—as presented by Judge Mannheimer—with Alaska’s instruction on constructive possession. It offers that the key to constructive possession is not the idea that one intends to have control over an object, but that one has a legal right (or the functional equivalent of a legal right) over the object, or the space where the object is. If we understand this idea of “authority” as essential to constructive possession, it turns out that pure cases of constructive possession are actually quite rare, and that many supposed cases of constructive possession are really cases of past actual possession. Part V proposes a new jury instruction on actual and constructive possession.

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